The Actual Drone CI Provision

The information that I received yesterday for last night’s post about drones and critical infrastructure facilities was not as complete as it could have been and as a result I made a small leap to the wrong amendments. While the two amendments that I reported on were submitted for consideration, they were not taken up by the Committee. Instead, Chairman Schuster’s (R,PA) Manager’s Amendment does contain similar language and was adopted by the Committee.

The Schuster amendment still adds a new 49 USC 45509 that adds the requirement I described yesterday for new regulations from the FAA. There is no requirement for covered facilities to register in order to have the regulations apply like we saw in Babin #81.

The very real difference between the adopted Shuster language and the two Babin amendments that I described last night can be found in the definition of critical infrastructure. The Schuster amendment’s definition {§45509(c)} only includes CFATS facilities and MTSA facilities. It does not include water treatment plants, waste water treatment facilities, DOD/DOE owned facilities or NRC regulated facilities.

Moving Forward

HR 4441 was approved in Committee yesterday on a near party line vote. In fact, there were two Republicans that voted against the bill. This means that the bill probably would not pass if it was brought to the floor under suspension of the rules which requires a 2/3rds vote to pass. This means that it would require a rule which would leave open the possibility of further amendments on the floor.

The unanimous Democratic opposition to the bill means that this version of the bill would almost certainly not get considered in the Senate. We are likely, therefore, to see another version of the bill with more bipartisan support introduced and voted upon in the Senate. The House could then either accept the Senate language or demand that a conference committee work out the differences in the two bills. In the 114^th Congress there has been a pretty even split between the two options.

There was no recorded vote on the Schuster amendment (not unusual) so it is hard to tell whether there is any substantial opposition to this provision which was a relatively minor part of that amendment. I suspect that there was significant opposition to the Babin amendments and that the Schuster language was offered as an acceptable substitute. This might mean that the Schuster language could end up in any conference reported bill.

Commentary

My comments from last night still stand except that the even further limiting of the drone regulations to just CFATS and MTSA covered facilities is even more inexplicable than was the lack of coverage in the Babin amendments for the electric grid and gas distribution lines. The only thing that I can figure is that including the water facilities would have required involving the EPA oversight committees and that was fraught with problems. There has been a general disinterest in Congress in requiring any real security of water treatment facilities. This is probably due to the fact that most of the facilities are owned by local governments that generally have little interest in spending money on real security measures.

DOT/DOE and NRC regulated facilities are already typically listed as flight restricted zones so that technically flying drones over them is already illegal. Raising the issue in this forum would just add ways for the bill to acquire more opposition.

It will be interesting to see if the industrial backers of this language can convince the Senate Commerce, Transportation and Infrastructure Committee to include it in their version of this bill.

Critical Infrastructure Drone Restrictions

Earlier this evening I received a heads up that the House Transportation Committee, during their markup of HR 4441, the Aviation Innovation, Reform, and Reauthorization Act of 2016, the Committee passed an amendment that would restrict small unmanned aircraft systems from flying over critical infrastructure facilities.

Somehow I over looked this bill when it was introduced last week, but it has an entire sub-title dealing with small unmanned aircraft systems, commonly referred to as drones. I’ll go back and review that entire sub-title in a subsequent post.

There were actually two nearly identical amendments (#081 and #084) introduced by Rep. Babin (R,TX) that dealt with drones and critical infrastructure facilities. It is not clear from the Committee web site tonight which of the two amendments was adopted, but it really does not matter much at this point for reasons that I will discuss later in this post.

Definitions

The underlying bill defines ‘small unmanned aircraft’ as “an unmanned aircraft weighing less than 55 pounds, including everything that is on board the aircraft” {new 49 USC §45501(8)}.

The other critical definition (pardon the repetition here) is that for critical infrastructure. Instead of the typical weasel worded definition that can be stretched to fit everything or nothing these amendments get very specific. They use coverage by other federal security programs as the basis for the definition. Those specifically listed programs are {{new 49 USC §45509(d)}:

• MTSA program;

• CFATS program;

• Public water system program;

• Public treatment works program;

• Facilities owned by DOD or DOE; and

• Facilities regulated by NRC

New Regulations

The amendments would require the Administrator of the FAA to issue final regulations (in an unreasonably short 6 months) “concerning the operation of small unmanned aircraft systems in the proximity of critical infrastructure facilities” {§45509(a)}. The regulations would be required to {§45509(b):

• Describe the critical infrastructure facilities to which the regulations would apply;

• Ensure that the designated facilities are part of an established federal security laws;

• Establish boundaries for permissible unmanned aircraft operations;

• Permit facility owners to operate unmanned aircraft over the facilities; and

• Establish criminal penalties for violating the regulations.

The difference between the two amendments is that #081 would require eligible facilities to register with the Administrator for the regulations to have effect. Amendment #084 automatically covers all of the eligible facilities.

Moving Forward

Until the complete committee record for this markup becomes available and we can look at the votes I will not be able to tell for sure if this bill has bipartisan support. As it clearly has the support of the Chair of the Transportation and Infrastructure Committee {Rep Shuster (R,PA) is the author and Committee Chair}, the bill will make its way to the House floor and it will pass. If it has bipartisan support it may make it whole to the Senate floor for consideration.

Given the very large number of amendments that were offered in Committee, I suspect that this bill may require a rule for consideration in the House, which would open it up for more amendments there.

It is way too early to know if one of these amendments will make it into the final FAA authorization act.

Commentary

I strongly suspect that industry will support this amendment (either version). The American Chemistry Council has provided me with a statement of support that the vote for the amendment will “help address a mounting security concern and help safeguard chemical facilities”. I really expect other industry organizations to chime in.

Now I have frequently written about the potential hazards that drones pose to chemical facilities (most recently here), so one would expect that I would be supportive of these amendments, and I suppose that I am. They are a good first pass at attempting to address the obvious security problems with drones. But there are three glaring problems with these amendments.

First, they missed a couple of types of very important critical infrastructure facilities in their definition; electric grid facilities and gas transmission facilities come quickly to mind. The gas transmission facilities I almost understand; they are not covered by a formal federal security program (TSA security coverage is very vague and voluntary). Large portions of the electric grid, however, are covered under the NERC CIP program which should count as a federal security program.

The second and certainly more important problem is that making flying drones over one of these protected facilities a crime is not going to stop someone who intends to do the facility harm; its just another law to be broken in the process. To make this restriction really mean something it has to authorize covered facility owners to take action to stop a drone from flying over their facility.

Currently the FAA has made clear that shooting down a drone is just as illegal as shooting down any other aircraft in the national airspace. There are a number of good reasons for taking; probably the most important is that shooting down aircraft results in uncontrolled crashes that may do more damage than the unrestricted drone ever word.

There are, however, a number of emerging technologies are being designed for active drone defense that would allow a defender to take control of a drone in a specified area and cause it to make a controlled landing in a designated area. Unfortunately, a critical infrastructure owner would be unlikely to try to employ such a system, fearing running afoul of the current rules that protect aircraft.

For legislation to provide real protection to critical infrastructure from drone attacks of whatever sort, it will have to provide legal cover for taking action against the drones. While I don’t think we want the local chemical company to employ air-defense weapons to protect their air space (like nuclear facilities did after 9-11), but specifically taking control of drones violating very clearly defined airspace near and over designated facilities to force a controlled landing would seem to me to be very reasonable.

Finally, there is the problem of identifying the restricted air space defined in the required regulations well enough so that a non-adversarial drone hobbyist does not inadvertently violate that air space. Currently pilots have very detailed maps of restricted air space that they are supposed to maintain and they have received training in how to read those maps as part of their required pilot training. Even so, there are a relatively large number of inadvertent restricted air space incursions every year.

How we are going to get that level training to the over 350,000 currently registered sUAV owners is completely beyond me.